DROI-O-615

EU Criminal Law

Part II : the cooperation

mechanisms: judicial
cooperation in criminal matters
Julia Burchett
Recap of the previous lesson
• Principle of mutual recognition : very important
principle aimed at syplifying and accelerating judicial
cooperation
• => implies that a judicial decision adopted in one
Member State should be quasi automatically
recognized and enforced by another Member State
with a minimum of formality
• => Challenges traditional concepts of territoriality
and sovereignty

• The principle of mutual recognition is itself based on

another very important principle/presumption:
mutual trust
 Variable geometry or « The different
faces of mutual recognition"
• Mutual recognition is subject to a “variable
geometry”: each of its concretizations has its
own particularities
• => Lack of consistency
• Not possible to go through all legislative
instruments => Illustration of mutual recognition
by resorting to 2 case-studies: the EAW and the
EIO
1) Introduction: reasons and notion

2)General evolution of judicial cooperation in

criminal matters among the MSs of the EU

3) The European Arrest Warrant (EAW)

4) The European Investigation Order (EIO)

 3) The EAW or the “success
story” of the EU for criminal
justice
 Emergence of the EAW

• Tampere conclusions: “the formal extradition procedure

should be abolished among the Member States as far as
persons are concerned who are fleeing from justice after
having been finally sentenced, and replaced by a simple
transfer of such persons, in compliance with Article 6 TEU.
Consideration should also be given to fast track extradition
procedures, without prejudice to the principle of fair trial.”

• Adoption of the EAW FD (consensus reached quickly

after 9/11): the EAW replaces extradition between the
EU Member States as of 1 January 2004.
Main characteristics of the EAW
• The EAW is a judicial decision in view of the arrest and the surrender of
a person:
− for the purpose of conducting a criminal prosecution
− for the purpose of executing a custodial sentence or a
detention order

• It is based on the principles of mutual recognition and mutual trust

• It simplifies the surrender of suspects and accused by:

− Allowing direct contact between judicial authorities
− Excluding the requirement of double criminality with regard
to 32 offences (ar.2 (2)
− Limiting the possibilities for refusal to a set of exhaustive grounds
indicated by the FD (art. 3 and 4)
− Imposes time limits for the entire procedure (art. 17 = 60 days if
the person does not consent to his surrender/10 days if the person
consents)
 Severity thresholds
General penalty thresholds
See art 2(1) FD An EAW may
be issued for:
− an offence punishable in the issuing MS by a custodial sentence
for a maximum period of at least 12 months (pre-trial EAW)
− a custodial sentence of at least 4 months (post-trial EAW)

• Special threshold for the 32 “listed” offences

A specific penalty threshold is provided in regard to the offences for
which double criminality is excluded: in those cases, the offence has to
be punishable in the issuing MS by a custodial sentence for a
maximum period of at least three years
 Grounds for refusal
• Mandatory (Art. 3):
- amnesty
- ne bis in idem (sentence served or no longer executable)
- person under the age of criminal responsibility

• Optional (Art. 4-4a):

– double criminality (where applicable)
– ongoing prosecution for the same act in the executing MS
– other forms of ne bis in idem (i.e. final judgement in third state)
– statute-barred prosecution or punishment (if the executing MS has jurisdiction)
– executing MS undertakes execution of sentence national or resident (post-trial EAW)
– territoriality clause
– in absentia (post-trial EAW)
 Positive overall assessment of the EAW
Ø Implemented in all MS of the EU
Ø Positive assessment – consensus in this regard: see for
instance acceleration of the proceedings, which contrasts
with the pre-EAW situation (see COM evaluation reports :
in comparison with the one-year average under the
extradition regime, the average is now 48 days when the
person does not consent to surrender and from 14 to 17
days in case of consent).
Ø Between 2005 and 2014

=> EAW considered as the “flagship” of EU criminal law

 HOWEVER

• EAW subject to strong criticism: especially by

the CoE High Commissioner for Human Rights
(see Hammarberg, “Overuse of EAW – a threat
to Human rights”, 15 March 2011), by NGOs
(see Justice and FTI) and by some authors.
• Far from perfect and room for improvement
(see COM evaluation reports, 4th round of
mutual evaluation and “Ludford Report”).
=> Problems and difficulties remain and need to
be addressed
 See research paper for the EP (2014)
Critical Assessment of the Existing European Arrest Warrant Framework Decision,

by A. Weyembergh

Þ Difference between 2 categories of problems and

difficulties concerning the EAW mechanism:
Ø problems that arise from a bad implementation of the
EAW FD => to be addressed by the Commission,
eventually through infringement proceedings after the
end of the transitional period (i.e. 1 December 2014)
Ø other types of problems and difficulties => Focus of the
research paper
• on the one hand, those that are due to the EAW FD or to the
EAW mechanism itself
• and, on the other hand, those that arise because of the
incompleteness and imbalances of the EU Area of Criminal
Justice.
CJEU case-law on the EAW FD:
Need to strike a balance…

Melloni
West
Jeremy F.

Effectiveness FR Protection
EAW Aranyosi - Caldararu
LM
Lanigan ML
Vilkas Dorobantu
Radu
 CJEU, 5 April 2016, Aranyosi and Căldăraru
C-404/15 and C-659/15 PPU (fundamental right not
to be subject to inhuman or degrading tratment on
the gounds of detention conditions)
• Context: a German court needs to decide on the execution of two EAWs
issued by Hungary for prosecution of M. Aranyosi and of a EAW issued by
Romania M. to secure the enforcement of a custodial sentence passed
against M. Căldăraru
• Issue: the referring court has reasons to believe (ECtHR judgments) that, if
surrendered, the requested persons would be subject to conditions of
detention that are in breach of Art. 3 ECHR (Art. 4 Charter)
• But the EAW FD does not include a fundamental rights based- ground for
refusal
• Þ Question to the ECJ: If in such circumstances the execution of the EAW
can or must be refused or made subject to the condition to obtain sufficient
information from the issuing MS that the detention conditions are
compatible with fundamental rights
• CJEU
– Where there is evidence of a real risk of inhuman or degrading treatment of individuals detained in
the issuing MS, the executing authority must assess that risk before deciding on the surrender of the
individual concerned (para. 88).

Two-stage examination !
- (first stage) The executing authority must first assess the existence of a general risk of inhuman or degrading
treatment due to systemic or generalised deficiencies in the conditions of detention in the prison of the issuing
Member State, based on objective, reliable, specific and properly updated information (para 89).

- (second stage) If there is evidence of a real risk in relation to general detention conditions, the executing judicial
authority must assess in a second step whether there are substantial grounds for believing that the requested
person, if surrendered, will in fact exposed to such risk (=individual risk assessment). To that end, the executing
authority must, pursuant to Art. 15 (2) FD request information to the issuing authority on the
conditions in which it is envisaged that the requested person will be detained. The issuing authority is
obliged to provide that information (paras. 92-97).

– If, in light of such information, the executing authority finds that the requested person will be exposed
to a real risk in concreto of inhuman or degrading treatment in the event of his surrender to the
issuing MS, the execution of the EAW must be postponed but it cannot be abandoned (para 98.)

– If the existence of that risk cannot be discounted within a reasonable time, the executing judicial
authority must decide whether the surrender procedure should be brought to an end must be brought
to an end (para. 104).
• Conceptual implications: The first case in which Fundamental Rights argument can overrule effectiveness
of EU Law.
 EAW & FR: A User Guide

Execution EAW

Request of
Existence of supplementary
deficiencies in information
detention (A 15 (2) FD)
conditions in -> real risk for
issuing MS the requested
person?
Postponement
-> Refusal if risk
cannot be
discounted in
reasonble time
 CJEU, 25 July 2018, Case C-
220/18 PPU, ML
• Þ EAW issued on 31 October 2017 by the Hungarian
Disctrict Court against ML (Hungarian national ) for the
purpose of executing a custodial sentence in Hungary =
German authority requested to execute the EAW
• Þ The German executing authority is however uncertain
whether ML may be surrendered to the Hungarian
authorities = the German court sent a request to obtain
additional information concerning the conditions in which
ML might be detained in Hungary (list of 78 questions…)
• Þ Referring court raises notably the following questions :
- Question related to the impact of the existence of a legal remedy in Hungary: is
it sufficient to rule out the risk of inhuman and degrading treatment?
- + Questions related to the scope of the review that the judicial executing
authority is required to undertake (all prisons/only the prison in which the
requested person is likely to be detained? What value should be given to the
gurantees provided by the issuing authority?, etc.)
 => CJEU provided further guidance
clarifying the Aranyosi test
When the executing judicial authority has information showing systemic or generalised
deficiencies in the conditions of detention in the prisons of the issuing Member State, the
accuracy of these must be verified by the referring court in the light of all the available updated
data.
• Concerning the legal remedy
–the executing judicial authority cannot rule out the existence of a real risk that the person in respect of
whom a European arrest warrant has been issued for the purpose of executing a custodial sentence will be
subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, merely
because that person has, in the issuing Member State, a legal remedy permitting him to challenge the
conditions of his detention, although the existence of such a remedy may be taken into account by the
executing judicial authority for the purpose of deciding on the surrender of the person concerned;

• Concerning the scope of the review to be undertaken by the judical executing authority
–the executing judicial authority is required to assess only the conditions of detention in the prisons in
which, according to the information available to it, it is likely that that person will be detained, including
on a temporary or transitional basis;
–the executing judicial authority must assess, to that end, solely the actual and precise conditions of
detention of the person concerned that are relevant for determining whether that person will be exposed
to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter;
–the executing judicial authority may take into account information provided by authorities of the issuing
Member State other than the issuing judicial authority, such as, in particular, an assurance that the
individual concerned will not be subject to inhuman or degrading treatment within the meaning of
Article 4 of the Charter.
+ furthter guidance provided : CJEU, 15
October 2019, Dorobantu, C-128/18
• Continuation of the previous Aranyosi and ML cases
Further clarification provided by the CJEU as to the scope of the
review and the standards against which such review should be
made:
- The assessment by the executing authority cannot be limited to the review
of abvious inadequacies of conditions of detention in the issuing State
- In the absence of EU standards on the matter, the CJEU entirely relies on the
case law of the ECtHR (strong presumption of violation of art. 3 ECHR when
the personal space available to a detainee is below 3m2 in multi-occupancy
cells)
- Altough an important factor, the existence of a mechanism for monitoring
detention conditions in the issuing Member State cannot as such rule out
the risk of inhuman or degrading treatment
- The fundamental right not to be subject to any inhuman or degrading
treatment is absolute and cannot be weight against considerations relating
to the efficacity of judicial cooperation in criminal matters
 CJEU, 25 July 2018, LM, C-216/18 PPU
(fundamental right to a fair trial)

• EAWs issued by Polish judicial authorities against LM (in

Ireland).
• LM opposed his surrender to Poland. In support of his
opposition to being surrendered, he submits, inter alia, that
his surrender would expose him to a real risk of a flagrant
denial of justice in contravention of Article 6 of the ECHR.
In this connection, he contends, in particular, that the
recent legislative reforms of the system of justice in the
Republic of Poland deny him his right to a fair trial. In his
submission, those changes fundamentally undermine the
basis of the mutual trust between the authority issuing the
European arrest warrant and the executing authority, calling
the operation of the European arrest warrant mechanism
into question.
=> CJ holds a reasoning similar to its reasoning in the Aranyosi
and Căldăraru case
• The Court reproduces the two-steps test as applied in Aranyosi and
Căldăraru
– First, the executing authority must assess, on the basis of material that is
objective, reliable, specific and properly updated concerning the operation
of the system of justice in the issuing Member State(…), whether there is a
real risk, connected with a lack of independence of the courts of that
Member State on account of systemic or generalised deficiencies there, of
the fundamental right to a fair trial being breached. Information in a
reasoned proposal recently addressed by the Commission to the Council on
the basis of Article 7(1) TEU is particularly relevant for the purposes of that
assessment (§ 61 and f.) but not sufficient...
– If this first step test is conclusive, then the executing authority must assess
specifically and precisely whether, in the particular circumstances of the
case, there are substantial grounds for believing that, following his
surrender to the issuing Member State, the requested person will run that
risk (§ 68 and f).

Þ Application by analogy of the CJ’s reasoning in the Aranyosi and

Căldăraru case to the right to a fair trial
Þ + clarifies that the 2nd stage of test (in concreto assessment) is
mandatory, even in the event of clear evidence of systemic deficiencies
(see §69) : see also CJEU, C-354/20 PPU – C.412/20 PPU, L & P, 17
December 2020 + CJEU C-158/21, Puig Gordi, 31 janvier 2023.
+ new clarification concerning the two-step test! :
CJEU, 18 April 2023, E.D.L., C-699/21
- EAW challenged on the ground that its execution would entail
a risk of serious harm to the health of the person requested

The Italian referring court considered that the surrender of the

person requested to Croatia in execution of the EAW would
lead to a worsening of his conditions and pose a serious risk to
his health… But found no grounds for refusal applicable in the
event of such risk

Þ CJEU was asked, in essence, whether the two-step test

in the Aranyosi judgment can be transposed, by analogy,
to the execution of an EAW which may create a serious
risk to health of the person concerned?
Further clarification provided by the
CJEU
• First time the Court has recognized that a risk of infringement of
fundamental rights may materialise irrespective of the existence of
systemic or generalised deficencies in the issuing State
Þ important clarification regarding the articulation of the two-step test
as established by the Aranyosi case-law!
• In such cases, two possibilities provided by the Court:
1) temporary postponment based on the EAW FD which provides for a
temporary exception to surrender for humanitarian reasons (art. 23(4)
FD EAW)
2) non-execution based on the doctrine of “exceptional circumstances”
as developped by the Court (in case the risk cannot be ruled out
within a reasonable period of time)
Still leaves some questions unanswered…e.g. does the exclusion of the first
stage of the test also apply to the risks resulting from detention conditions
and/or from the lack of independence of the judiciary?
+ some commentators see a risk of fragmentation of the protection of
fundamental rights in the context of the EAW
 CJEU, 27 May 2019, OG (C-508/18) and PI
(C-82/19 PPU), and PF (C-509/18)
• EAWs issued by German prosecutors and by the Prosecutor General
of Lithuania against two Lithuanian and one Romanian national were
challenged before the Irish courts.
• Question referred to the Court : can a public prosecutor acting in
accordance with rules such as those applying to German public
prosecutors as well as those applying to the Prosecutor General of
Lithuania be considered as an ‘issuing judicial authority’ for the purpose
of Article 6(1) of the EAW Framework Decision?
=> Clarification made by the Court
– While the notion of ‘issuing judicial authority’ is to be determined in
accordance with national law, this term nonetheless requires an autonomous
and uniform interpretation throughout the EU.
– Recalling its previous judgments on the matter (Poltorak, Kovalkovas), the
Court clarifies that the expression ‘judicial authority’ of Article 6 of the EAW
Framework decision does not only include national judges or courts of a
Member State but also, more broadly, the authorities participating in the
administration of criminal justice in the Member States, as distinct from,
inter alia, ministries or police services which are part of the executive =The
public prosecutor’s office of Germany and the Prosecutor General of
Lithuania must be regarded as participating in the administration of justice.
– What is more controversial is the second requirement that the issuing judicial authority must act
independently from the executive power when issuing a EAW (requirement of independence).

– Linked to the requirement of effective judicial protection : the EAW system entails a “dual level
of protection of procedural rights and fundamental rights which must be enjoyed by the
requested person” (para. 67):
Given that it is the responsibility of the ‘issuing judicial authority’ to ensure the second
level of protection, it must be capable of exercising its responsibilities independently,
i.e. without being exposed to the risk that its decision-making power be subject to
external directions or instructions, in particular from the executive. The Court found
that this requirement was not met by German law. The Minister for Justice has indeed an
‘external’ power to issue instructions in respect of German public prosecutors’ offices,
even though in practice this happens very rarely. For the Court’s assessment, it is thus not
relevant that German public prosecutor’s offices act in accordance with the principle of
legality, that there is a judicial remedy available for individuals to challenge the public
prosecutors’ decision to issue an EAW, and that, in the two specific cases at hand, no
instructions was issued by the Ministers of the Länder concerned. Instructions from the
minister for justice to the public prosecutors’ offices concerning the issuing of a European
arrest warrant remains nevertheless, in any event, permieed by the German legislation”
(para. 87).
=> German public prosecutors do not enjoy the degree of independence required by EU law and
are not to be considered as ‘issuing judicial authority’, within the meaning of Article 6(1) of the
EAW Framework Decision.

=> By contrast, the Court found that the Prosecutor General of Lithuania does, however,
provide such a gurantee of independence as they are afforded a sufficient degree of
independence from the executive
Continuation of the saga OG and
PI, and PF…(not exhaustive)
• CJEU, 9 October 2019, NJ, C-489/19 PPU (Austrian
public prosecutor’s office)
• CJEU, 12 December 2019, Joined cases JR (C-
566/19 PPU) and YC (C-626/19) PPU (French public
prosecutor’s office)
• CJEU, 12 December 2019, XD, C-625/19 PPU
(Swedish public prosecutor)
• CJEU, 12 December 2019, ZB, C-627/19 PPU
(Belgian public prosecuror’s office)
 The complex body of case law developped by the
Court also raises questions of interpretation….

A growing need to develop practical resources in order to help addressing

interpretative doubts and practical challenges stemming from the Court’s case
law:
Examples of useful resources to help practitioners to keep track of (the speedy
developments of) the CJEU case law:
- Commission revised Handbook on how to issue and execute a EAW(2017)
- Eurojust handbook on the case-law by the Court of justice of the European
Union on the EAW (2021)
- Eurojust questionnaire and compilation on the requirements for issuing and
executing judicial authorities in EAW proceedings pursuant to the CJEU’s case-
law

+ specific tools: e.g. the FRA criminal detention database

Also see the STREAM project (Strengthening Trust in the European Criminal
Justice Area through Mutual Recognition and the Streamlined Application of
the EAW) : https://stream-eaw.eu/the-project/